REPUBLIC OF THE PffiLIPPINES .

DEPARTMENT OF JUSTICE MANILA

PATRIA GLORIA ORTEGA, Complainant,

- versus ~

. NPS DOCKET NO.

IV-17-INQ-ll-A-00005

ROMEO M .. SERATUBIAS, ET AL.,

. Respondents.

x ----- .. -.-- ---.- -- ------ ---- - ------ -- -- _- -- -------·-··x

,

COUNTER-AFFIDAVIT

(of Gov. Jose Antonio N. Carrion)

I, Gov. Jose Antonio N. Carrion, of legal age, married, with address at No.1 Damian Reyes Highway, Brgy. Santol, Boac, Marinduque, after being sworn in accordance with law, depose and say:

1. I was the Governor of Marinduque from 1995 to 1998 and 2007 to 30 June 2010. I ran for re-election in May 2010 but lost.

1. I was surprised to learn that I was named a respondent in this preliminary investigation.

The only basis for my inclusion as a respondent is the statement of Rodolfo O. Edrad, Jr. in his Sinumpaang Salaysay of 6 February 2011. His Sinumpaang Salaysay reads in relevant part:

"19 .. T S

.

Close-in security ka pa ba ni Governor Carreon hanggang ngayon?

Hindi napo sir.

20.T Kailan pa?

S Matapos po noong nakaraang election May 2010 sir.

21. T Gaano kaba katagal bilang isang close-in security ni Governor Carreon?

S Mga dalawang taon din po sir.

22.T Anong dahilan bakit wala ka na sa kanya bilang isang close-in security ill .

Governor Carreon? .

S Napalipat po ako kay dating Palawan Governor Joel T .. Reyes bilang isang close-in security niya noong July 4, 2010 sir.

23.T Sino ang nag-rekomenda sa iyo bilang close-in security ni dating Palawan Governor Joel T. Reyes?

S Wala po dahil nakilala ko po Hong S1 Governor Reyes dahil ako ang close-in security ni Governor Carreon na kasa-kasama my a sa mga me_eting ng governor leagues at bukod doon ay magkaibigan silang dalawa magkasama sa mga sabong sir.

24.T Sinabi mo kanina ay isang salaysay na sasabihin tungkol doon bago mangyari at matapos mangyari ang pagpatay kay Dr. Gerry Ortega. Ano ba iyong bagay na naIalaman mo bago mangyari ang pagpatay?

S Noon pong huling lingo umaga buwan ng Hunyo 2010 matapospo aug election ay kinausap po aka ni Governor Antonio N. Carreon ng ganito Bumar, may ipapatrabaho akong dalawang tao at may budget na six. hundred thousand pesos (p600,OOO) at - ninegotiate ko pa na ito ay madagdagan pa ng one hundred thousand pesos (p100,000) para maging seven hundred thousand pesos (P700,OOO) sir.

25. T Saari lea my a sinabihan na may patatrabaho siyang dalawang tao?

S Sa garahe ng bahay niya sa No. 11 Rome Street, Merville Park Subdivision, Paranaque City sir ...

26.1' I Maaari mo bang linawin ang sabi niyang pagpatrabaho ng dalawang tao?

S Ang ibig niyang sabihin ay ipapapatay na dalawang tao miembro ng media sir.

26.T(sic) Noong kausapin ka, may mga kasama pa ba kayong iba?

S Wala po kami lang dalawa at pabulong pa nyang sinabi ito sa akin na dalawang taga Media sa Palawan sir.

27. T May binanggit ba siyang pangalan ng dalawang tao na ipapatrabaho niya?

S- WaIa po basta taga Media lang po ang sinabi my a at hinihintay na my a ang budget at picture nila sir.

28.T Ano po ang sumunod na pangyayari habang kayo ay naguusap na dalawa sa garahe niya?

S liang sandali po habangkami ay nag-uusap sa garahe ay tinawagan niya si dating Governor Joel T. Reyes at nagri-ring lang po and cellphone niya pero hindi nasagot tapos ng hindi niya makontak si Governor Reyes ay tinanong my a ako kung may contact number ako ni SP03 Boyet Rabine na close-in security ni Governor Reyes and sabi ay mayroon at ibinigay - ko sa kanya.

29.T Nang maibigay mo and contact number ni SP03 Rabine ano ang sumunod na pangyayari?

S Tinawagan niya agad si SP03 Rabino ang sabi po my a ay pakisabi kay partner na tumatawag ako sa kanya.

30.T Sino itong sipartner?

S Walang iba po kundi si dating Palawan Governor Joel T. Reyes sir ...

31.T Bakit kilalamo si SP03 Boyet Rabino?

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S Parati po naming siyang nakakasama may sabong 0 governors league at

siya kasi ang close-in security ni dating Palawan Governor Joel T. Reyes . sir.

32. T Noong kausapin ka niya doon sa ipapatay na dalawang tao miembro ng media, may kinahantungan ba angpag-uusap ninyong ito?

8 Wala po dahil wala pa daw budget at pagkatapos ng pag-usap naming iyon ni Governor Carreon ay umuwi po aka ng Pagbilao, Quezon."

. .

(Edrad's Sinumpaang SaIaysay dated 6 February 201 I, pp. 3-5)

3. I deny Mr. Edrad's false allegations. It is not in my character to have people killed. I was Governor for the Province of Marinduque for two terms and in those two terms, I have never been charged for any misconduct,

4. The alleged conversation described by Mr. Edrad in his Sinumpaang Salaysay never

took place. I never spoke to 11r. Edrad in the garage of my Merville house in Paranaque City or anywhere else about having media people or any other person killed.

5. Mr. Edrad stated that our alleged conversation took place in the last week of June 2cho (''Noon pong huling lingo umaga buwan ng Hunyo 2010").' This is a falsehood .. I did not return to Manila until around 1 a.m. of30 June 2010.

_ 6. In concocting his story, Mr. Edrad forgot to factor in the fact that the last week of June 2010 (from June 23 to 29) was critical for me. (June 30 was a holiday.) Since my term as Governor of Marinduque ended on 30 June 2010, I spent the last week of June 2010 in Marinduque attending to all pending matters and preparing for the turn over of the office to my successor. ",_..' P;....~ ?

6,1. On 24 June 2010, I co-signed a LandBank check payable to the "Marinduque National High School" ..

A copy of LandBank Check No. 296667 dated 24 June 2010 is attached hereto as Annex "A".

6.2. On 26 June 201 0: I spoke at the computer-training seminar conducted by PISCES Publishing, Inc. at the Tamayo Training Center, in Sta, Cruz, Marinduque.

6.3. On 28 June 2010, I attended the flag ceremony as Governor for the last time. (It has been my practice to attend the flag ceremony at the Capitol every Monday.) There, as is my practice, I read a verse from the Bible, and then gave my valedictory address.

In addition. I signed on the same day in Marinduque the certificate of completion of Pisces Publishing'S distribution and implementation of its computer system.

6.4. I left Marinduque for Manila only on 29 June 2010, at 8 p.m.; I took the ferry boat (more popularly known as RoRo, short for Roll-in and Ron-off) at Kawit Port, Boac, Marinduque. Mr. Edrad was with. me during the Roro ride ... Mr. Dioquino, the then IT Specialist and Project Coordinator of Pisces Publishing also joined our group on the way back to Manila. We arrived at Talao-talao Port, Lucena City, three hours later, at 11 p.m. There, I parted ways with Mr. Edrad and Mr. Dioquino. Quezon is the hometown of Mr. Edrad and that is where he got off. Mr. Edrad no longer accompanied me to my house in

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Merville since June 30 was a holiday and his employment as my security detail terminated on June 3 O .

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6.5. From Lucena City. I went directly to my house in Merville. I got home at around 1 a.m. of30 June 2010.

6.6. Thus. Mr. Edrad perjured himself when he claimed that I spoke to him about killing two media people in my garage in Merville sometime the last week of June 20ID.

A copy of Mr. Dioquino's Affidavit attesting to and corroborating the foregoing facts is attached hereto as Annex "B".

7. In addition, Mr. Edrad's allegations are not credible. The Supreme Court bas held that the test ofcre-dibility depends on the credibility of the witness and the credibility of his story. Thus:

"We have also held that for evidence to be believed, however, it must not only proceed from the mouth of a credible witness but must be credible in itself such as the common experience and observation of mankind can approve under the circumstances. The test to determine the value of the testimony of a witness is· whether such is in conformity with knowledge and consistent with the experience of mankind. Whatever is repugnant to these standards becomes incredible and lies outside of judicial cognizance." (people VS. Cantila, Jr.; G.R. No. 139458, 27 December 2002)

Here, neither Mr. Edrad nor his story is credible.

8 .. Mr. Edrad is not a credible witness.

8.1. First, he is clearly resentful of the fact that I terminated him as my security aide effective 30 June 2010, when my term as Governor ended. While I continued to retain the services of my othertwo security aides; I decided to do away with Mr. Edrad.

The fact that I was no longer Governor did not mean that the threats to my life had ceased. However, it meant that I had to reduce the number of my security aides due to financial considerations. While I was Governor, the provincial government paid for the salaries of my security aides. After 30 June 2010, I had to pay for the salaries of my security aides out of my own pocket. I chose to retain two of my more trusted aides over Mr. Edrad, namely, Ric Salvador, who has been my personal aide for the past 18 years and Omar dela Cruz, who has been my aide for 2 years but whom I trust more than Mr. Edrad.

Also, my wife no longer wanted Mr. Edrad around the house since he had an affair with two of my household help, one of whom was 24 years old and the other a mere 16 years old, a minor. Upon learning of the multiple affairs, my wife dismissed the older house help,

8.2. Second, a few days after the killing of Dr. Ortega, Mr. Edrad sent to Mr. Randie Manoy the following text messages (Short Message Service):

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[i] January 26,2011; 8:19:25 p.m, - "Isinasangkot 19 ako ng mga yan wla ako alam jan";

[ii] January 26,2011; 8:21:19 p.m. - "Walang katotohanan mga bnbentang ng mga yan"; and

[iii] January 26, 2011;. 8:23:29 p.m. - "Patay nla ak makukuha pare"

Randie Manoy was my driver for 12 years. I had him re-assigned to the District Engineer of the Department of Public Works and Highways (DPWH) in December 2009 because he fell madly in love with a woman and failed to report to work on time and could no longer focus on his job as driver. Mr. Manoy is currently the driver of the District Engineer of the Department of Public Works and Highways (DPWH) in Marinduque. He became the driver of the District Engineer in October 2010. Mr. Maney ~ew Mr, &Irad even before Mr. Edrad became my security aide.

Mr. Manoy went to me after he heard the news that Mr. Edrad had dragged my" . name in connection with the death of Dr. Ortega.

8.3. Mr. Edrad's text messages squarely contradict his subsequent allegations against me, further undermining his credibility. If I had any involvement, he would have mentioned such fact to my former driver. Instead, he denied involvement in the murder of Dr. Ortega and made no mention of my name.

8.4. Mr. Manoy also recently informed me that sometime last year (2010), Mr.

Edrad had told him that lowed him. (Mr. Edrad) PI Million. Mr. Manoy did not report the matter to me at that time since he thought it absurd and of no moment. Mr .. Edrad's claim is, of course, outrageous. but it shows his character and frame of mind.

A copy of Randie Maney's Affidavit attesting to and corroborating the foregoing facts is attached hereto as Annex "C".

8.5. Third, I have since learned that Mr. Edrad has pending criminal cases against him for rape, murder, and qualified theft .

.

8.6. Moreover, he is a self-confessed participant, having admitted his

involvement in the killing of Dr. Ortega.

8.7.. In People vs. Tabayoyong'; the Supreme Court found the character of a defendant who had a pending case for theft of a cow and fanning equipment worth PSO.OO to be "open to grave suspicion and doubt", thus:

"The defendant Garlejo has been accused of stealing a cow and farming equipment worth Fifty Pesos (P50,OO) in Urdaneta, Pangasinan, which case is still pending in court (t.s.n., p. 4, 8, July 27, 1967) and he has also admitted having escaped from jail. (t.s . n., p. 7, July 27, 1967, cited in Brief for accused Castro, p .. 7). From this evidence, Garlejo'scharacter is open to grave suspicion and doubt

lOR No. L-31084, 29 May 1981.

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Here, given the gravity of the crimes for which he is accused and the crime to which he has confessed, with all the more reason, Mr. Edrad's character cannot be trusted.

8.8. Finally, Mr. Edrad's statement against me is uncorroborated by any other witness or piece of evidence; hence,coming as it does from a polluted source, -it has no .probative value, following the ruling in the en 'bane case of People vs. Tabayoyong, supra, thus:

"The main thrust of the arguments of herein appellants in support of their common assigned error is that Garlejo's testimony comes from a polluted source and the same was not validly and convincingly corroborated in any of its material pOints by any other witness or witnesses, nor by any other evidence for the prosecution. hence it cannot and should not be legally accepted and made the basis for the imposition of the supreme penalty of death.

We find the contention meritorious. x x x.

xxx.

"The identification of the accused Bautista made by the defendant Garlejo whose testimony "unmistakably" placed him (Bautista) at the scene of the killing," and the identification of the accused Begenio who was "unfortunately identified to be with the group that ambushed and murdered Marcelo Guico," and that of the accused Castro who, according to Garlejo "when Marcelo Guico was being murdered the accused Antolin Castro gave 'aid by holding the deceased Marcelo Guico" is not worthy of credence and. belief, not only because the evidence relied upon comes from a. polluted source but also because it is not supported by any other material. evidence on record. The legal principles heretofore cited earlier in this decision as to the probative value of evidence given by an accomplice, unsupported by corroborating evidence on. the material points are clearly applicable to the case at bar. We reject Garleio's testimony incriminating the three (3) remaining accused not merely because it is polluted, COmlpt anti contaminated. It is hlghlyimprobable. unnatural and faJ' out of the common experience of man whether in doing what is good and lawful or what is evil and wTOng." (Underscoring added)

9. Also, there is a crudeness and false ring to Mr. Edrad's story.

9.1. His story essentially runs as follows: I decided to terminate him as my security aide. Then, during the last week of June 2010, a few days before he left my employ, I spoke to him in my garage in Merville, Parafiaque City, and whispered to him to kill two (unnamed) media men in Palawan. A week later, in. the afternoon of 4 July 2010, he met with Gov. Joel Reyes, his new employer, at the Palawan Center in Makati City. Not long after, I arrive at the Palawan Center and spoke with Gov. Reyes, away from Mr. Edrad.

9.2. Apart from the fact that I was not in Manila during the last week of June 2010, it does not make sense for me to ask him to kill two (unnamed) media people a few days before he left my employ. Why would I ask someone whose employment I have rT---.l.·ust terminated to perform so heinous a criminal act?

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9.3. Furthermore, I no longer had full trust in Mr. Edrad because of his affairs with two of my house help, one of whom was a minor. Why, then, would I trust Mr. Edrad with ajob so grave if I did not even retain him as part of my security detail?

9.4. In addition, the allegation that I spoke with Gov. Reyes away from Mr.

Edrad has.no significance. Mr. Edrad does not say what I spoke to Gov. Reyes about.

But if Mr. Edrad is implying that I spoke to Gov. Reyes about killing media

'people in Palawan, he is engaging in speculation. Moreover, if it were true that Gov.

Reyes and I discussed at the Palawan Center the killing of media people in Palawan, as Mr. Edrad seems to (falsely) imply, why would we exclude Mr. Edrad from the conversation? Wouldn't it be more natural for me to have introduced Mr. Edrad to Gov. Reyes and included him in our conversation?

. 9.5. It likewise does not make sense for me to speak.to Mr. Edrad about the

killing of two media people, allegedly in Palawan, when I did not even recommend him as a bodyguard to Gov. Reyes. By Mr. Edrad's own admission, he became Gov. Reyes' close-in security because he personally got to know Gov. Reyes when he was still working for me. Mr. Edrad's statement reads in relevant part:

''23. T Sino ang nag-rekomenda sa iyo bilang close-in security ni dating Palawan Governor Joel T. Reyes?

S Wala po dahil nakilala ko po itong si Governor Reyes dahil ako ang close-in security ill Governor Carreon na kasakasama niya sa mga meeting ng governor leagues at bukod doon ay magkaibigan silang dalawa magkasama sa mga sabong sir." (Edrad's Sinumpaang Salaysay dated 6 February 2011, p. 4)

If I did-not recommend. him as a bodyguard, why would I talk to him about the killing of unnamed media people in Palawan?

9.6. In Santos vs.· Orda, Jr.2, the Supreme .Court held that. "In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense."

Here, Mr. Edrad's story defies common sense.

10. I know Governor Joel T. Reyes because he is likewise a. member of the League of Governors and because he and I enjoy cockfighting. But that is the extent of our relationship. I am no closer to him than I am to any of the several other governors whom I have gotten to know over the years.

In any event, even if our friendship ran deeper than it actually is, I still would not conspire with him to kill media people or anyone for that matter.

1 G.R No.. 189402,6 May 2010.

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11. There is too the fact that I have stood up for the environment and against the interests of mining when warranted by the circumstances.

11. L. In 1996, I,. together with others, filed a petition with the Supreme Court to immediately stop the mining operations of Mar copper in Marinduque.

11.2. In addition, on 26 October 1996, I spearheaded the implementation of the Philippine Agenda 21 through the organization of the Marinduque Council for Sustainable Development and the crafting of the Strategic Environmental Management Plan and the Physical Framework Plan which became the province's development blueprint.

11.3.. In. 2007, during my term, the Provincial Board of Marinduque passed a resolution ~reiterating its position on a 50-year moratorium on large-scale mining.

A copy of Resolution No. 25 series 2007 entitled "Resolution Reiterating the Declaration of a Fifty (50) Year Large Scale Mining Moratorium in the Province of Marinduque" issued by the Sangguniang Panlalawigan on 19 July 2007 is attached hereto as

Annex "D". '

I likewise attach as Annex "E" a copy of former Provincial Board Member Cesaria Zoleta's supporting affidavit attesting to the foregoing facts.

12, The lack of any reasonable ground to hold me for trial warrants the dismissal of the instant Complaint against me.

12.1. Section 1, Rule 112 of the Rilles of Criminal Procedure defines what a preliminary investigation is and states its purpose. Section 1 of Rule 112 provides:

"Sec. 1. Definition. - Preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and shouldbe held for trial.

12.2. The quantum of evidence necessary to hold a respondent for trial is "reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof." If upon conclusion of the preliminary investigation there does not appear to be any reasonable ground to hold the accused for trial. the complaint must be dismissed.

13. As demonstrated above, the evidence against me. which consists merely of the eliable statement of Mr. Edrad •. failed to establish my participation in the death of Dr. Ortega.

13.1. Because Mr. Edrad's uncorroborated statement against me is not credible and is improbable. it fails to meet the ~bable cause.

13.2. In Santos vs. Orda, Jr.3. the Supreme Court upheld the dismissal of the Information against the accused on the ground that the charges did not meet the standard

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G.R. No. 189402,6 May 2010.

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of probable cause, The Supreme Court took into account the unreliability of the witnesses and the improbability of their testimonies .. The ruling reads in relevant part:

"The task of the Presiding Judge when an Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is such set of facts and circumstances that would Iead a reasonably discreet and prudent man to bel:i.eve that the offense charged in the Information or any offense included therein. has been committed by the person sought to be arrested. In determining probable 'cause, the average man weighs the facts' and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused .. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction,

Moreover, when confronted with a motion "to withdraw an Information on the ground of lack of probable cause based on a resolution of the DOJ Secretary, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case,' the trial court is not bound by such resolution, but is required to evaluate it before proceeding further with the trial and should embody such assessment in the order disposing the motion.

Records show that the RTC, on motion of the prosecution, allowed the withdrawal of the Informations for murder, holding that the prosecution witnesses testimonies were not credible. Pursuant to the Courts Decision in G.R.. No. 158236. the RTC reviewed anew the records of the case and made an. independent evaluation of the evidence presented to ascertain the existence or non-existence of probable cause to indict the petitioners, After such evaluation, the court, on September 30, 2005, dismissedthe case for murder against the accused, including petitioners herein.ratiocinatlng that no probable cause existed to indict them for their crime. Consequently, it lifted the warrants fOI their arrest and ordered their immediate release from detention. The prosecutions motion for reconsideration was denied on December 28, 2005.

A closer scrutiny of the Order of the RTC reveals that the Presiding Judge allowed the withdrawal of the Informations, consequently dismissed the case against petitioners, and lifted the warrants for their arrest on the following grounds: I) the incredibiIity of the earlier statements of Gina, Emesto and Derutis because of their subs:eguent recantation; 2) the improbability that Dennis and. Emesto saw and heard. the conversations of the accused in view of the counter-evidence submitted. by Ligay&, showing the physical set-up of her residence or building. the ldnd of door she maintained therea.t, and the inner private room she had; 3) the lack or insufficiency of evidence at the level of prosecution for pl!fPoses of determining probable cause: and 4}the incredibility of the testimonies of Sabino and Jonas because of the absence of corroborating evidence.

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Given the foregoing, we find that the RTC did not err in fmding that no probable cause existed to indict the petitioners for the crime of murder. Neither did it gravely abuse its discretion in making said conclusion. There was no hint of whimsicality, nor 'of gross and patent abuse of discretion as would amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law on the part of the Presiding Judge .. On the contrary, he came to the conclusion that there was no probable cause for petitioners to commit murder, by applying basic precepts of criminal law to the facts, allegations and evidence on.record. Said conclusion was thoroughly explained in detail in the lengthy Order dated September 30, 2005. We would like to stress that the purpose of the mandate of the judge to first determine probable cause is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial." (Underscoring added) .

14. Moreover, I have .shown through my own evidence, fully supported by the statements of several witnesses, that it was physically impossible for me to have had the alleged conversation with Mr. Edrad in my Mervine residence in the last week of June 2010 for the reason that I did not arrive at my Merville residence until around 1. a.m. of 30 June 2010 'and when I did, Mr. Edrad was not with me.

In People vs. Gamer'; the Supreme Court held "for alibi to prosper, the requisites of time and place must be established by clear and convincing evidence", thus:

"Thus appellant's defense of alibi and denial.gains considerable strength in the face of the unreliable identification of the alleged perpetrator of the crime. Evidence against him is simply quite weak to hold him even for trial. The public prosecutor should have moved to dismiss the charges. as he did in favor of the co-accused, Teodoro Siron, Jr. The literal signification of the word 11 alibi II is "elsewhere" and for alibi to prosper, the requisites of time and place must be established by clear and convincing evidence. Here, appellant and his employer, Renato SimbilIo, testified that as early as 5:00 p.m., they were preparing to leave for Manila, and at around 9:00 p.m., they were already somewhere in the vicinity of the Manila area unloading the sand and gravel. That Mr. Simbillo is a friend and neighbor of the victim persuades us that he has no possible motive to fabricate his testimony in favor of appellant."

. My evidence, which specifies my whereabouts in the last week of June 2010, meets the standard of "clear and convincing evidence."

IS. In any event, my alibi gains in 'strength given the weakness of the complainant's evidence against me.

In People vs. Manambit', the Supreme Court held that alibi "acquires commensurate strength when the case for the prosecution is equally infirm", thus: .

0 .. 115984,.29 February 2000. G.R. Nos. 72744-45, 18 April 1997.

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, .

"The alibi of Jimmy Manambitmey be weak but the rule that alibi must be satisfactorily proven was never intended to change the burden of proof in criminal cases; otherwise, we win see the absurdity of an accused being put in a more difficult position where the prosecutionsevidence is vague and weak than where it is strong. As one contradiction between prosecution witnesses testimonies is followed by another -dn relation to the equally contradictory fact . presented by the bullets found near the tamarind tree which tends to support the trial courts theory of an unidentified assassin -- the weakness of the prosecutions case is revealed and the appellants defense of alibi is put into focus.

-,'

- ~:._. --

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The weakness of the prosecution evidence on Appellant Jimmys identification as an assailant would have eliminated discussion of his defense of alibi. It should be pointed out, however, that when the identification of the accused as the author of the crime charged is inconclusive or unreliable, alibi assumes importance. It acquires commensurate strength when the case for the orosecution is equally infirm. Alibi is not always undeserving of credit, for there are times when the accused has no other possible defense for what could really be the truth as to his whereabouts at the crucial time, and such defense may in

_ fact , tilt the scales ofjiustice in his favor. Neither may the fact that a, witness to the alibi is a relative affect the probative value of his testimony. Family relationship does not by itself render a witness testimony inadmissible or devoid

of evidentiary weight." (Underscoring added). ,

16. "Not once have I entertained the thought of silencing my critics using physical force. I have been raised to believe that the best way to silence critics is through the force of reason.

16.1. My father passed away when I was only nine years old. Upon the death of my father, my uncle, Constantino Sarmiento Nieva, became a father figure to me. My uncle was both a lawyer and a priest. Immediately after graduating from the University of the Philippines law school, he went straight to the seminary to pursue his true vocation. I still recall his words to me when I decided to engage in politics 15 years ago ... He told me not just to expect-criticism but to welcome it. I have ever since followed his advice.

16.2. I do: not take criticism personally. My home in Marinduque is open to friend

and critic alike, '

16.3. The media. in Marinduque is free to express their views, whether favorable or unfavorable to my administration and.policies, When the media unfairly criticizes, I do not shut down the radio station or the publishing company; I refute them with the facts. When media turns out to be right, I am open to altering my views.

16.4. The clash of ideas makes for better government. No one person has a monopoly on truth and often compromises have to be ironed out. That is why in Marinduque there are no political or media killings or talk. of such killings. There are antimining advocates in Marinduque but no killings.

I fully subscribe to the Supreme Court's observations in Us. vs. Bustos", about the benefits of public debate and criticism and the need for men and women in public service not to be thin-skinned. There the Supreme Court en bane, again speaking through Justice

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"The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scelpel in the case offree speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and anunjustaccusation; the wound can be assuaged with the balm of a clear conscience, A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the individual be exalted. Of course, criticism does not authorize-defamation. N~v~eless, as the individual is less than the State, so mustexpected criticism be born for the common good. Rising superior to any official or set of officials, to the Chief of Executive, to the Legisl~;'.tp',:,the .Judiciary, ,'to_MY or all the agencies of Government - public opiDio!l',should be -t.p.e 'constant source of

- liberty and democracy. (See the well" considered cases of Wason VS.

Walter, 4 L. R. 4 Q. B., 73; Seymour VS; Butterwox:th;:g;F.·(ani:i~F., 372; The

Queen vs. Sir R. Carden, 5 Q. B. D:. 1) ~-'::' ': ::t':"_- -;'-. ,

The guaranties of a free speech and a free press include the right to criticize judicial 'conduct. Theadnili:d~oD;'of .th~~l~Vi-i_~~~ matter of vital public concern. 'Whether the law is wi~~ly or badiy~ru6tp&i is, therefore, a fit subject for proper comment, If th(peopJ.e cap.p.ot,.c.zjtic~ a justice of the peace or a judge the same. as a.ny~oih~f::W~I1Q',pfji*;(~p,tiblic opinion will be effectively muzzled. <Attempted""t;iroIizati&~o:O:~~;ibHc opinion on the part of the judiciary wOq_ld be ~y.':~f the 'b~est':,s~ort. The sword of _ Damocles in the hanQsof,:a.~judg~_:14_'ies., not hailg,)qS~ded over the individual who dares to assert'1iliiPt~g~ve as,a;.dti#ii,:'~d to stand up bravely before any official, On the dQnti'al'Y,. it is! duty which everyone 0v:es to society ~r to the -State to ~;-'''::'i~~~<~vestj:~tio;n of any a1Ieg~d misconduct, It IS further the duty_:\o --'au: who mow, of any official dereliction on the part of a magistrate or' the wrongful act of any public officer to bring the facts to, the ,no~~'~0f.~p~~,Whose,Jiuty if Is to inquire into and punish them. In the words"9r~4~ce<GayD.er, who contributed so largely to the law of libel. "The-people are not obliged to speak of the conduct of their, officials in ,,:~~~;,:Q~ with ~~t¢ breath in a free government, butonly in -a despotj$!h~mowarth vs~-'Barlow [1906], 113

App. Div .• N, Y.,. 510.'" ":~~.(i:_:,:~,:~,t:~; "

16.5. Like the public official in,'By"gQs" I assua:ge-:_;what~ver wound is inflicted on me by my critics with the balm of8?cle~'C$ilicience.' --,- ', ,-":

. But even assuming ar~ndo.y,., i~ilije:~;~~~n~.:,Fq~ ~e,to be true - statements

which I deny 4 as a matter of lew, I still cannotb!£~J~tli.8.ble for the:_~:ofDr. Ortega.

_._ .,:0..-:" - c , -'

-'

::::.

'--~" .

.. tflcoIm, held:

17.1, Article 8 of the Revised;~~ .. , .. X'~' '~~;'l?rovidij~~tSA-conspiracy exists when two. or more pe~s?ns come to,a:n~-~u ' ' ,,:~~~~1~W~minission of a felony and

decide to commit It." , -~;~\:::{~:-:'_;'" -

• - :''"'(--'~--''. > - -

~'-~-~. -_';

-:":.:~-- ";_

.-

.to.

17.3. Even assuming arguendo that I did mention to Mr. Edrad that "may ipapatrabaho akong dalawang tao at may budget na six hundred thousand pesos(P600,OOO) at ninegotiate ko pa na ito ay madagdagan pa ng one hundred thousand pesos (PI 00,000) para maging seven hundred thousand pesos (p700,OOO)" - words which I deny having said to Mr. Edrad - such words do not rise to the level of conspiracy punishable under the Revised Penal Code ..

In his story, there was no mention of the identity of the two persons who were supposed be the targets of the conspiracy; nor did he say that I gave him any money to carry out the conspiracy; nor was there any mention of where and when the crime was to be committed. Equally important,even if Mr .. Edrad's story is to be believed, there was no decision to commit the conspiracy. Mr ... Edran himself said that nothing came of the plan. His statement reads in relevant part:

"32T Noong kausapin ka niya d'oon sa. ipapatay na dalawang tao

miembro ng media, may kinahantungan ba aug pag .. uusap ninyong ito? .

S Wala po dahU wala pa daw budget at pagkatapes ngpag-usap naming

iyon n:i:Govemor Carreon ay umuwi poako ng Pagbilao, Quezon." ~

(Edrad's Sinumpaang Salaysay dated 6 February 2011, p. 5)

17.4. Thus, as a matter of law, the conspiracy, assuming arguendo that there was such an. agreement to commit a felony, did not materialize. The acts imputed to me constitute neither conspiracy nor complicity.

In People vs. Asaad', the Supreme Court en bane, speaking through Justice Malcolm, heId that not all words of inducement arecriminal, Only words that are "as direct, as efficacious, as powerful as physical or moral coercion or as violence itself' give rise to criminalliabiHty.The ruling reads in relevant part;

"The only doubtful factor of the case has had to do with the guilt or innocence-of the remaining four accused, Mawaji, Salim, Saladi, and Nahula .. These four accused attended the conferences and entered no opposition to the nefarious scheme. After the commission of the murders, they joined withthe other accused in celebrating with ajiesta. Aside from this, these four did not cooperate in the commission of the crimes. Nor is it certain that, as relatives or -retainers of Angkaya, the four had any influence over. Sampang and Suhai1i,and that any of the four said or did

anything that determined the commission of the crimes. May they be considered as authors by inducement within the meaning of article 13 of the Penal . Code? May they be considered as accomplices within the .

meaning of article 14 of the Penal Code? .

Our deliberate judgment on. these question is that the four accused may neither be considered as authors by inducement nor as accomplices. Merely assenting out of respect and fear, and merely attending a feast by way of custom does not constitute an effective inducement. 'What the four did amounted to joining in a conspiracy, But the Penal Code, in article 4,

7

G.R No.. L~33673,. 24 February 1931.

13

~.'

~ .

.. ,

does not punish a conspiracy as such. As to the accused being accomplices, it has not been shown that, aside from attending the meetings of the conspirators and joining in a feast, they cooperated in the execution

of the crimes by previous or simultaneous acts. .

In corroboration of the foregoing, there may be cited the comment of Viada on article 13, paragraph 2, of the Penal Code. a comment which has heretofore been adopted by this court, where, among other things, it is said:

We have heretofore said that in addition to the precepto and the pacto there are similar means by which another may be induced to commit a crime which also make the one who offers the inducement the principal in the crime by virtue of the provisions of article 13, paragraph 2. But it must be borne in mind that these acts of inducement do not consist in simple advice or counsel given before the act isoommitted,' or in simple words Uttered at the rune the act was committed. Such advice and. such words constitute undoubtedly .an evil act. an inducement·condemned by the moral law; but in order that, under the provisions of the 'Code, such' act can be considered direct inducement it is necessary that they be as direct. as efficacious. as powerful as physical or moral coercion or as violence itself. (2 Viada, Codigo Penal Comentado, p. 386, 5th Edition; U. S. vs. Indanan [1913], 24 Phil., 203.)

We conclude that the defendants and appellants Sampang, Suhaili, and Asaad have been proved guilty beyond a reasonable doubt of double murder. We further conclude that the defendants and appellants Mawagi, Salim, Saladi,and Nahula have not been proved guilty beyond a reasonable doubt of the crimes charged, or of any lesser crimes included in the charge, and that as a consequence they are entitled to acquittal." (Underscoring added)

17.5. Here, "the words I allegedly uttered to Mr. Bdrad, even if true, were not the direct, efficacious, and powerful words contemplated by law in defining the standard of "direct inducement." My alleged words had no moral, physical or violent force on Mr. Edrad, whom I had terminated as part of my security detail. In fact, in Mr. Edrad's own words, nothing came of it.

17.6. Even assuming that the conspiracy materialized, it was abandoned. From the time Mr. Edradand I parted ways at the wharf in Lucena City on 29 June 2010, I no longer dealt with him.

17.7. In People vs. Supt. Berroya', the Supreme Court held that "in order to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the conspiracy" and "that overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other co-conspirators y moving them to execute or implement the conspiracy."

8 G.R. No. 122487, 12 December 1997.

14

The Supreme Court further held that "Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it without any active participation in the same, is not enough for purposes of conviction. H

"Furthermore, in order to hold an accused liable as co-principal by reason of conspiracy. he must be shown to have performed an overt act in pursUance or furtherance of the conspiracy. That overt act may consist of active participation in the actual commiission of the crime itself, or it may consist of moral' assistance to his co-conspirators by being present at the time ofllie commission of the crime. or by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy. Hence. the mere presence of an accused at the discussion of a conspiracy, even approval of it without any active participation in the same, is not enough for PUIJ?oses of conviction. Thus, assuming Vienes was a participant in the planning to abduct a Taiwanese national, in the absenc.e of eyewitness to the actual abduction, there is a paucity of evidence as to whether or not Vienescarried out his part of the plan.

Given the above, it becomes painfully apparent that Vienes' presence at the May 7 and May 1 Q meetings is insufficient to convict him. In fact, even the evidence as to his presence in the May 10, 1993 meeting is inconclusive. While both- Reyes and Pagtakhan pinpoint appellant Vienes as present in the May 7 meeting, Reyes does not say that he was present on May 10. Pagtakhan, on the other hand, says he was. }lis presence at Le France on May 11, 1993, when the victim was said to be downstairs, cannot be held against him, as the same is belied by the prosecution itself, . which claims that the victim was never brought to Le France. .

Consequently, without proof that appellant Vienes personally took part in the execution of the kidnapping, there is only at most, a conspiracy with the other accused. Conspiracy alone, without the execution of its purpose, is not a crime punishable by law except in special cases, none of which is present in the case at bar; hence, appellant Vienes cannot be held criminally liable."

17.8. Here, there is no allegation "of active participation in the actual commission of the crime itself", or "of moral. assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other coconspirators by moving them to execute or implement the conspiracy."

17.9. There is no allegation or other evidence that I took part in the execution of the crime. I do not know the perpetrators of the crime nor have they, with the exception of Mr. Edrad, implicatedme,

As held by the Supreme Court, "Conspiracy alone, without the execution of its purpose, is not a crime punishable by law except in special cases.' Here, the "special cases" are inapplicable.

18. The Supreme Court has consistently held that an investigating officer should VJ.JJILL"", ...... ately terminate the proceedings where it is apparent at the· outset that the complaint is bereft of legal and factual bases -- as it is his duty to protect the innocent from hasty, expensive· and useless trials.

15

18.1. Thus, in Bernardo vs, Mendoza, 90 SCRA 220 [1970], the Supreme Court reminds the investigating prosecutor to weigh the evidence carefully to determine the existence ofprimajacie evidence before filing any information in court:

r·.

"Prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in the administration of justice. It should be realized, however, that when a man is haled to court on a criminal charge, it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before filing the information in court. Anything less would be a dereliction of duty.

Respondent judge erred in admitting and giving due course to the information, considering that he was made aware of the circumstances leading to the filing of said information x x x."

. 17.2. And in Rodis, Sr. vs. Sandiganbayan, 166 SCRA 623 [1988}, the Supreme Court declared that the purpose of a preliminary investigation is to secure the innocent from hasty,malicious and oppressive prosecution, thus:

"It is worthwhile repeating that the avowed purposes of a preliminary investigation are to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials."

19. In closing, it is well to remember and worth quoting at length the words of the Supreme Court in A/lado vs. Hon. Diokno', There, the Supreme Court held that good faith belief in the existence of probable cause is not enough to hold a person for trial. Any finding of probable cause should.be supported by "sufficient and credible evidence" and the reason for that is this: the prosecuting officer "is the representative not ofan ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Hence, the' Supreme Court reminded judges and prosecutors that "in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are sworn to serve and protect. We thus caution government .agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community."

The Supreme Court's relevant ruling reads:

"Accordingly, before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof .. In the Order of

9 G.R. No.1 13630 May 5, 1994.

16

L.'judge dated 11 February 1994, it is expressly stated that "[tjbis court after ,£fu1~;;~uation of the evidence on record, believes and rules that probable cause . exists; and therefore, a warrant of arrest should be issued. II However, we are unable to

see how respondent judge arrived at such ruling. We have painstakingly examined the records and we cannot find any support for his conclusion. On the contrary, we discern a number of reasons why we consider the evidence submitted to be insufficient for a finding of probable cause against petitioners.

x x x,

But then, it. appears in the instant case that the prosecutors have similarly misappropriated, if not abused, their discretion. If they really believed that petitioners were probably guilty, they should have armed themselves with facts and circumstances in support of that belief; for mere belief is not enough. They should have presented sufficient and credible evidence to demonstrate the existence of probable cause .. For the prosecuting officer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such. he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall ... not escape or innocence suffer. He may prosecute with earne.stness and vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about ajust one"

In the case at bench, the undue haste in the filing of the information and the inordinate interest of the government cannot be ignored.. From the gathering of evidence until the termination of the preliminary investigation, it appears that the state prosecutors were overly eager to file the case and secure a warrant for the arrest of the accused without bail and their consequent detention. Umbal's sworn statement is laden with inconsistencies and improbabilities. Bato's counter-affidavit was considered without giving petitioners the opportunity to refute the same. The PAce which gathered the evidence appears to have had a hand in the determination of probable c~use in the preliminary inquiry as the undated resolution of the panel not only bears the letterhead of P ACC but was also recommended for approval by the head of the P ACC Task Force. Then petitioners we're given the runaround in securing a copy of the resolution and the information against them.

. ,

Indeed, the task of ridding society of criminalsand misfits and sending them to jail in the hope that they will in the future reform and be productive members of the community rests both on the judiciousness of judges and the prudence of prosecutors. And, whether it is a preliminary investigation by the prosecutor, which ascertains if the respondent should be held for trial, or a preliminary inquiry by the trial judge which determines if an arrest warrant should issue, the bottomline is that there is a standard in the determination of the existence of probable cause: i.e., there should be facts and circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the crime with which he is charged. Judges and prosecutors are not off on a frolic of their own, but rather engaged

in a delicate legal duty defined by law and jurisprudence. .

In this instance, Salonga v. Paito, finds application -

The purpose of a preliminary investigation is to secure the innocent against 17

-, ,

-, ..

/t'~~~~iOUS and oppressive prosecution, and to protect 'him from an open and

.. /fjublic accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trial (Trocio v. Manta, 118 SeRA 241, citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process (people v. Oandasa, 25 SCRA 277). However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that the transgressor shall not escape with impunity. A preliminary investigation serves not only for the purposes of the State. More importantly, it is a part of the guarantees of.freedom and fair play which are birthrights of all who live in the country. It is therefore imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going thru a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a SUfficient belief as to the guilt of the accused (emphasis supplied).

The facts of this case are fatefully distressing as they showcase the seeming immensity of government power which when unchecked becomes tyrannical and oppressive. Hence the Constitution, particularly the Bill of Rights, defines the limits beyond which lie unsanctioned state actions. But on occasion" for one reason or another, the. State transcends this parameter. In consequence, individual liberty , unnecessarily suffers. The case before us, if uncurbed, can be illustrative of a dismal trend. Needless injury of the sort inflicted by government agents is not reflective of responsible government. Judges and law enforcers are not, by reason of their high and prestigious office, relieved of the common obligation to avoid deliberately inflicting

urinecessary injury. .

The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its se1£preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is nota carte blanche for government agents to defY and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and inipulsive prosecution. Hence, even if we apply in this case the "multifactor balancing test" which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident, still we cannot see probable cause to order the detention of petitioners.

;" ' .

The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other; the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of

the strong ann of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights.

Perhaps, this case would not have reached this Court if petitioners were ordinary people submissive to the dictates of government. They would have been illegally arrested and detained without bail. Then we would not have the opportunity to rectify

18

State Prosecutor

~'~ortunateIY: th~ victims of injustice are lawye~s who .are vigilant of their &£'l'fs, who fight for their liberty and freedom not otherwise available to those who

/C"ower in fear and subjection. '.

Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the enforcement of the law that in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are sworn to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to- weed society of felons. let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community."

20. Under theeircumstances, I ask the Honorable Panel to dismiss the complaint for

murder as against me for lack of evidence. . .

Subscribed and sworn to before me this day of 17 March 2011 in the City of Manila.

l~A~~~cA~

-... State Prosecuto,""'-

State Prosecutor

CERTIFICATION

I hereby certify that I have personally examined the affiant and I am satisfied that he voluntarily

executed and understood his Counter-Affidavit. . ~ t ~ J. Cv\__

~ACINTO'S. CAC~ -.......... State Prosecutot"

Copy furnished:

Roque & Butuyan Law Offices Counsel for Complainant

1904 Antel Corporate Center

121 Valero Street, Salcedo Village Makati City

19